Citation Nr: 0335760
Decision Date: 12/18/03 Archive Date: 12/24/03
DOCKET NO. 02-15 144A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether the appellant has legal entitlement to Department of
Veterans Affairs benefits as the child of a deceased veteran.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. J. Drucker, Counsel
INTRODUCTION
The appellant has brought this claim as the daughter of a
deceased individual who had recognized guerrilla service from
December 1944 to February 1945 and service with the Regular
Philippine Army from September 1945 to December 1945. He
died in July 1988.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal of an October 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
which the RO denied the appellant's claim of entitlement to
death benefits (based upon a claim for either dependency and
indemnity compensation (DIC) or survivors' pension) as the
surviving child of a deceased veteran.
The Board notes that an October 2001 letter to the RO
regarding the appellant's claim described her as the writer's
"client". Nevertheless, a signed power of attorney from
the appellant authorizing that individual, or an accredited
service organization (VA Form 21-22, Appointment of Veteran's
Service Organization as Claimant's Representative), is not
associated with the claims file. Moreover, the appellant was
unrepresented at her September 2002 personal hearing at the
RO. Thus, the Board believes that all due process
requirements were met regarding the appellant's
representation in this matter.
FINDING OF FACT
The appellant was born in March 1965 and is more than 23
years old, and there is no current evidence or allegation of
record that she became permanently incapable of self-support
prior to reaching age 18 in March 1983.
CONCLUSION OF LAW
The appellant has no legal entitlement to VA benefits as the
decedent's child. 38 U.S.C.A. §§ 101(4)(A), 1313, 1542 (West
2002); 38 C.F.R. §§ 3.57(a)(1), 3.159 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act
In November 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). This statute redefined the
obligations of VA with respect to the duty to assist
claimants, and included an enhanced duty to notify and assist
a claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. VA has published
regulations to implement many of the provisions of the VCAA.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)
(2003)). See also VAOPGCPREC 7-2003 (Nov. 19, 2003), as to
retroactivity of the VCAA regulations.
Although the appellant is ultimately seeking entitlement to
VA death benefits (DIC or pension) as the child of a deceased
former member of the recognized guerrillas and Philippine
Army, the Board does not reach the issue of whether such
benefits should be granted in this appeal. The matter of
whether the appellant meets the basic eligibility
requirements of the law to receive any type of death benefits
is currently before the Board on appeal. Unlike many
questions subject to appellate review, the issue of whether
the appellant has basic eligibility for death benefits as a
deceased veteran's child has, by its very nature, an
extremely narrow focus. We note that this case turns upon a
legal matter pertaining to the status conferred by the
appellant's age, and that medical records, examination
reports, and the like are not pertinent to the present
decision.
Both the law and regulations provide that VA will refrain
from or discontinue providing assistance in obtaining
evidence where the claimant is not entitled to the benefit as
a matter of law. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R §
3.159(d). In fact, the U.S. Court of Appeals for Veterans
Claims (hereinafter referred to as the CAVC) has held, in
another case wherein the issue was whether the veteran had
qualifying service for pension purposes, that "because the
law as mandated by statute, and not the evidence, is
dispositive of this claim, the VCAA is not applicable."
Mason v. Principi, 16 Vet. App. 129, 132 (2002) citing Smith
v. Gober, 14 Vet. App. 227 (2000) (holding that VCAA did not
affect Federal statute which prohibits payment of interest on
past due benefits), aff'd, 281 F.3d 1284 (Fed. Cir. 2002).
See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Consequently, the VCAA is inapplicable here.
Moreover, the Board notes that the RO, in the September 2002
statement of the case, set forth the law and facts in a
fashion that clearly and adequately explained the basis of
its decision.
II. Analysis
The appellant seeks VA death benefits as the surviving child
of her deceased father. See 38 U.S.C.A. §§ 1313, 1542.
Generally, a child of a veteran means an unmarried person who
is a legitimate child, a child legally adopted before the age
of 18 years, a stepchild who acquired that status before the
age of 18 years and who is a member of the veteran's
household or was a member of the veteran's household at the
time of the veteran's death, or an illegitimate child; and
(i) who is under the age of 18 years; or (ii) who, before
reaching the age of 18 years, became permanently incapable of
self- support; or (iii) who, after reaching the age of 18
years and until completion of education or training (but not
after reaching the age of 23 years) is pursuing a course of
instruction at an approved educational institution. 38
U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.57(a)(1).
It does not appear that a determination has been made in this
case as to whether the decedent met the requirements in the
law to qualify as a "veteran", i.e., as a person who served
in the active military service as defined in statutes and
regulations. See 38 U.S.C.A. §§ 101(2), (24), 107; 38 C.F.R.
§§ 3.1(d), 3.6, 3.40. Nevertheless, since the instant matter
turns upon the appellant's potential status as a "child"
under the law, the Board needs not reach the issue of veteran
status.
In this case, the appellant's birth certificate shows that
she was born in March 1965, as the decedent's natural child.
Thus, at the time of her August 2001 application for
benefits, the appellant was older than the maximum allowable
age of 23 years for purposes of satisfying the definition of
"child". In addition, the appellant has not alleged, and
there is no evidence of record to show, that she became
permanently incapable of self-support prior to her 18th
birthday in March 1965. Thus the appellant is not a
"child" for purposes of establishing legal entitlement to
VA benefits. Id. Accordingly, the appellant's claim must be
denied for lack of legal merit. See Sabonis v. Brown, supra.
ORDER
As the appellant has no legal entitlement to VA benefits as
the decedent's child, her appeal is denied.
___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
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4597
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
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2003
(RS)
4597
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